THE REPUBLIC OF UGANADA
IN THE CONSTITUTIONAL COURT OF UGANDA
CORAM: HON. MR. JUSTICE G.M. OKELLO, JA
HON. LADY JUSTICE A.E.N. MPAGI-BAHIGEINE, JA
HON. MR JUSTICE S.G. ENGWAU, JA
HON. MR JUSTICE A. TWINOMUJUNI, JA
HON. LADY JUSTICE C.N.B. KITUMBA, JA
CONSTITUTIONAL PETITION NO 2 of 2003
(1) - UGANDA ASSOCIATION OF WOMEN LAWYERS ]
- DORA BYAMUKAMA ]
- JACQUELINE ASIIMWE MWESIGE] ::::::::::::::::::::::::::::::::: PETITIONERS
- PETER DDUNGU MATOVU ]
- JOE OLOKA ONYANGO ]
- PHILIPS KARUGABA ]
THE ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
JUDGMENT OF TWINOMUJUNI, JA:
This is a petition by the above named six petitioners brought under Article 137 of the Constitution seeking the following declarations :-
"(a) Section 4(1) of Divorce Act (Cap.249) contravenes and is inconsistent with Articles 2.1(1) & (2), Article 3.1(0 and Article 33(1) & (6) of the Constitution;
(b) Section 4(2) of the Divorce Act (Cap.249) contravenes and is inconsistent with Articles 21(1) & (2),Article 31(1) and Article 33(1) & (6) of the Constitution;
(c) Section 5 of the Divorce Act (Cap.249) is inconsistent with and contravenes Article 21(1) & (2), Article 31(1) and Article 33(1) & (6) of the Constitution; "(d) " Section 21 of the Divorce Act (Cap.249)is inconsistent with and contravenes Article 21(1) & (2), Article 31(1) and Article 33(1) & (6) of the Constitution;
(e) Section 22 of the Divorce Act (Cap.249) is inconsistent with and contravenes Article 21(1) & (2), Article 31(1) and Article 33(1) & (6) of the Constitution.
Sections 23 and 24 of the Divorce Act (Cap.249) is inconsistent with and contravenes Article 21(1) and Article 31(1) of the Constitution;
Section 26 of the Divorce Act (Cap.249) is inconsistent with and contravenes Articles 21(1) & (2), Article 31(1) and Article 33(1) & (6) of the Convention;
(h) No order be made as to costs in any event;
(i) Any other or further declaration that this Honourable Court may deem fit to grant. "
The petition is supported by affidavits of the petitioners and two others sworn by Andrew Lumonya and Norah Matovu Winyi. The respondent filed a reply to the petition, which is also supported by an affidavit sworn by the As. Solicitor General Mr. L. Tibaruha.
At the trial of the petition, Mr. Phillip Karugaba, Ms. Lydia Ocheng Obbo and Ms Sarah Lubega represented the petitioners. Ms. Carol Mayanja, a Senior State Attorney and Mr. Henry Oluka, a State Attorney represented the respondent.
At the beginning of the trial. Ms. Carol Mayanja raised three preliminary objections to the petition. Realising that two of them she abandoned them and opted to pursue only one of them. She submitted that, the petition was time-barred and therefore unsustainable. She relied on the provisions of rule 4(1) of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, (Legal Notice No.4 of 1996) which provides that:-
"4(1") The petition shall be presented by the petitioner by lodging it in person, or, by or through his or her advocate, if any, named at the foot of the petition, at the office of the Registrar and shall be lodged within thirty days after the date of the breach of the Constitution complained of in the
Learned counsel submitted that the Divorce Act whose provisions are being challenged in the petition was enacted in 1904. It was therefore saved by Article 273(1) of the Constitution which provides that:-
"Subject to the provisions of this article, the operation of existing law after the commencement of this Constitution shall not be affected by the coming into force of this constitution but the existing laws shall be construed with such modifications, adaptation, qualifications and exceptions as may be necessary to bring it into conformity with this constitution."
According to counsel, this provision brought the Divorce Act into force, in its new form, with effect from the date when the constitution came into force, which was the 8 th October 1995. To be able to challenge provisions of that Act, one had to file the petition in the Registry of this court within thirty days from the date the Act came into force, the 8th October 1995. This' petition was filed nine years after the Act came into force and therefore it is time barred. Counsel invited us to hold that this petition is incompetent and to dismiss it.
In reply, Mr. Phillip Karugaba submitted that the petition was not time barred. He contended that from the date the Constitution came into force, the provisions of the Divorce Act complained of in this petition breached the Constitution.. Every day the provisions remain in force constitutes" a continuing breach of the Constitution. In his view, rule 4(1) of Legal Notice No.4 of 1996 cannot apply to Acts or acts which constitute continuing breaches of the constitution. Mr. Karugaba invited this court to follow its earlier decisions on the matter in the case of Joyce Nakachwa vs. Attorney General and 2 others. Constitutional Petition No.2 of 2001 and Attorney General vs. Dr. James Rwanyarare and 9 others Miscellaneous Application No.3 of 2002 (C.A) unreported.
Mr. Karugaba made another argument in reply. He submitted that the 1995 Constitution never placed a limit on the time a Constitutional Petition could be lodged in court. On the contrary, Article 3(4) of the Constitution placed a duty on all citizens of Uganda to "AT ALL TIMES" defend the Constitution against unlawful suspension, overthrowal, abrogation or amendment. In his view, in order to be able to carry out that duty, the citizen must have access to courts of law, and the Constitutional Court in particular, AT ALL TIMES. He pointed out that the thirty days rule which was introduced in a subsidiary legislation was not in accordance with the spirit of the constitution. He suggested that we declare it unconstitutional or declare it to be only directory and not mandatory. He cited a number of. authorities to support his submission that the word "shall" used in rule 4(1) of Legal Notice No.4 of 1996 has been Interpreted to be directory in certain circumstances.
Ms. Carol Mayanja exercising her right of reply opposed any attempts to interpret the word "shall" to be directory and insisted that it was mandatory. She also cited cases in support of her argument that such construction would not be appropriate in the circumstances of Legal Notice No.4 of 1996.
After hearing this preliminary objection, we overruled it, promising to give our reasons with the main judgment of the petition. I propose to give my reasons why I supported the courts decision to overrule the preliminary objection before giving my judgment on the merits of the petition.
The matter of limitation raised by rule 4(1) of Legal Notice No.4 of 1996 has been a subject of many decisions of this court, many of them not consistent admittedly. We admitted that much in the case of Attorney General vs. Dr. James Rwanyarare and 9 others (supra) where this court stated:-
Recently, we have made a number of decisions on this issue which we hoped had put this issue to rest. Apparently we did not succeed. We must now make another attempt in the hope that we shall succeed this time. But first, a short review of the application of Rule 4 of Legal Notice No.4 of 1966 in this court since its inception is called for.
In the infancy days of this court, we decided in a number of cases that a Constitutional Petition filed outside the thirty days of limitation was incompetent. We held that the thirty days began to run the date (in case of an Act of Parliament) - when it became law and in case of any other "act" from the date it occurred. This was the holding in the cases of James Rwanyarare (supra). Hajji Sebbagala (supra). Sarapio Rukundo (supra) and Ismail Serugo (supra). Almost all these cases were decided in 1997. However, the Constitutional Court began to realise the problems being caused by the traditional literal interpretation of the thirty days rule especially the hardship it caused in its application to human rights and freedoms cases. A debate began within the court on the following issues:-
(a)Whether the continued dismissal of petitions because of Legal Notice No.4 of 1996 (Rule 4) was not hindering access to the Constitutional Court.
(b)Whether the practice could be sustained in light of the fact that a mere Statutory Instrument was being applied to deny access to constitutionally guaranteed rights and freedoms.
(c) Whether or not Rule 4 of Legal Notice No.4 of 1996 was . not in fact unconstitutional."
We then considered relevant decisions of the Supreme Court and indicated that in our view, their Lordships had not finally pronounced themselves on the constitutionality of the thirty days rule because the issue did not call for determination in the case of Ismail Serugo vs. KCC and Anor Constitutional Appeal No.2 of 1997 which they were considering. We however, highlighted comments made by two justices of the court on the rule which we would like to highlight again here:-
Hon. Justice Mulenga, JSC stated:-
"I do appreciate that any constitutional case is very important and once it is filed it must be attended to expeditiously so that a constitutional issue is not left in abeyance for unduly long. The Constitution expressly commands the courts concerned to give that priority to such cases. However, to extend that reasoning to the period prior to the filing of a petition, can lead to unintended difficulties. The most conspicuous difficulty is in respect of petitions alleging that an Act of Parliament or other law, is unconstitutional. Apart from the question of the starting day of computing the thirty days. there is the high probability of the inconsistency of such law being realised long after the expiry of the thirty days after enactment. In my view, the problem should not be left to be resolved through applications for extension of time, as and when need arises. The appropriate authority should review that rule to make it more workable, and to encourage, rather than appear to constrain, the culture of Constitutionalism." [Emphasis supplied]
Hon. Justice Oder, JSC concurred as follows:-
"As regards limitation of time, the complaint in respect of the act of arrest in contravention of the Constitution, the cause of action was not time barred. I also think that the period of limitation of 30 days will have the effect of stifling the constitutional right to go to the Constitutional Court rather than encouraging the enjoyment of that right. It is certainly an irony that a litigant who intends to enforce his right for breach of contract or for bodily injury in a running down case has far more time to bring his action than the one who wants to seek a declaration or redress under Article 137 of the Constitution. What needs to be done by the authorities concerned is obvious." [Emphasis supplied]
This court then concluded:-
"This court has held in Nakachwa case (supra) that each decision must be confined to its own peculiar facts. For example, in respect of a mature mentally normal person, it is fair to hold that the date of perception of a constitutional breach by an Act of Parliament is the date it comes into
force, not the date the petitioner becomes aware of the breach because, he/she is presumed to be aware of it from the date the Jaw came into force. Ignorance of the law is no defence. But what about the infants and the unborn children who may grow up to find that the continuing effect of a constitutional breach by an Act of Parliament contravenes their rights and freedoms or even threatens their very existence, for instance, where the Act authorises activities hazardous to the environment which threaten human existence for the future generations. Are they not protected by the Constitution? Part of the Preamble to the 1995 Constitution states:-
' WE THE PEOPLE OF UGANDA ...............
DO HEREBY, in and through this Constituent Assembly Solemnly adopt, enact and give to ourselves and our posterity this Constitution of the Republic of Uganda this 22nd day of September, in the year 1995." [Emphasis supplied]
It seems to us that a constitution is basic law for the present and the future generations. Even the unborn are entitled to protection from violation of their constitutional rights and freedoms. This cannot be done if the thirty days rule is enforced arbitrarily. In our view, rule 4 of Legal Notice No.4 of 1996 poses difficulties, contradictions and anomalies the enjoyment of the constitutional rights and freedoms guaranteed in the 1995 Constitution of Uganda. We wish to add our voice to that of the learned Supreme Court Justices, (Mulenga, JSC and Oder, JSC) that this rule should be urgently revisited by the appropriate authorities."
On this occasion, like on several other earlier occasions, we held that the thirty days began to run from the day when the petitioner perceives the breach of the constitution. We stated that the decision was intended, in the words of Mulenga, JSC to "make the rule workable and encourage, rather than constrain, the culture of constitutionalism."
We resisted the temptation to declare the rule to be in conflict with the constitution because, firstly, we hoped that the relevant authorities would urgently act on the concerns of the Supreme Court and those of this court expressed in Attorney General vs. Dr. Rwanyarare (supra) as indicated above. To date, nothing has been done. Secondly, the provisions of Article 3(4) of the Constitution had not yet been brought to our attention. That article provides in clause 4 as follows:-
"(4) All citizens of Uganda shall have the right and duty at all times -
(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to overthrow the established Constitutional order, and (b)to do all in their power to restore this constitution after it has been suspended, overthrown, abrogated or amended contrary to its provisions." [Emphasis supplied)
The issue which we must decide now is whether section 4(1) of Legal Notice No.4 of 1996 has the effect of amending the Constitution of Uganda. If the answer is YES, then we must hold that the citizens of Uganda have a right to come to this court to have it nullified. The Constitution gives the people of Uganda the right under Article 137 to have unimpeded access to this court to seek declaration and redress where:-
An Act of Parliament;
Any other law;
Anything done under the authority of any law;
Any act or omission by any person or authority;
is inconsistent with or in contravention of any provision of the Constitution.
In pursuit of this objective, they have a duty at all times to come to court in resistance to any violation of the Constitution. What then is the role of this thirty days rule? I have examined the practical implication of this rule since this court came into being. Its role has been to restrict access to this court. It has acted as an impediment, a roadblock and a nuisance to those seeking access to constitutional justice. To recast the words of Oder, JSC (supra) "It is certainly an irony that a litigant who intends to enforce his right for breach of contract or for a bodily injury in a run down case has far more time to bring his action than the one who wants to seek a declaration or redress under Article 137 of the Constitution."
In my view the framers of the Constitution could not have intended tin's result. If they had intended such a result they would have expressly provided so in Article 137.
I am aware that the Attorney General has argued elsewhere that Article 3(4) of the Constitution only applies when the constitution is threatened or has been violated through physical violence. With respect, I do not see any justification in giving the article such a narrow interpretation. The people of Uganda have a right and a duty at all times using all means available, peaceful or violent, constitutional or unconstitutional to resist attempts to unconstitutionally:
"Suspend, overthrow, abrogate or amend the Constitution."
The phrase "amendment of the Constitution" has been considered by the Supreme Court in their recent decision in Paul Ssemogerere and others vs. Attorney General. Constitution Appeal No. 1 of 2002.
In a leading judgment, Kanyeihamba JSC, stated with approval an earlier holding of this court (per TWINOMUJUNI, JA) that:-
"If an Act of Parliament has the effect of adding to, varying or repealing any provision of the Constitution then the Act is said to have amended the affected article of the Constitution. There is no difference whether the Act is an ordinary Act of Parliament or an Act intended to amend the Constitution. The amendment may be effected expressly, by- implication or by infection, as long as the result is to add to, vary or repeal a provision of the Constitution. It is not material whether the amending Act states categorically that the Act is intended to affect a specified provision of the Constitution. It is the effect of the amendment that matters."
Their Lordships in the Supreme Court were here dealing with an Act of Parliament but the holding equally applies to a subsidiary legislation or any other act or omission. To the extent that rule 4(1) of Legal Notice No.4 of 1996 imposes restrictions to the right of access to the Constitutional Court, which the constitution itself does not provide for. it is seeking to add to and or vary the constitution and therefore to amend it without doing so through the amendment provisions of the Constitution. It is clearly against the spirit
of the constitution and it is now high time that this court restored, in full, the citizens right to access to the Constitutional Court by declaring that the Rule is in conflict with the Constitution and is therefore null and void. I would so declare.
These are the reasons why 1 concurred in the decision to overrule the preliminary objection.
THE MERITS OF THE PETITION
I now turn to the merits of this petition. The petitioners are challenging several provisions of the of the Divorce Act (Cap 249 Laws of Uganda) as being inconsistent with the provisions of the 1995 Constitution. In particular, they contend that the provisions of Sections 4(1), 4(2), 5, 21, 22, 23 and 26 of the Act are inconsistent and in contravention of Articles 21(1) and 21, 31(1) and 33(1) and (6) of the Constitution
(2) SHORT HISTORY OF THE DIVORCE ACT
The Divorce Act which was enacted in Uganda in 1904 has got its origins in the Matrimonial Causes Act of 1857 of England. That Act also had its roots in the Common Law of England whereby a valid marriage could only be terminated by the death of one of the parties to it or by a divorce decree pronounced by a court of competent jurisdiction. The Matrimonial Causes Act 1857 provides that a party to a marriage could obtain a decree of divorce on proving that the spouse had committed a matrimonial offence. The only offence that entitled a husband to obtain the decree was adultery. For a wife, it was not enough for her to prove adultery against her husband. She had to prove that me husband was guilty of aggravated adultery (which meant adultery plus another offence e.g. incest, bigamy, cruelty, desertion etc) or he had changed his faith from Christianity to some other faith and gone through a form of marriage with another woman. This law was brought into force in Uganda by the enactment of Divorce Act on 1st October 1904. Despite the fact that the English have since reformed the Matrimonial Causes Act 1857 by legislation enacted in 1923, 1937, 1969 and. 1973, and have abandoned the concept of divorce granted on the basis of proof of matrimonial offences, the 150 years old English Law is still intact and in force in Uganda. As if this is not bad enough, section 3 of the Divorce Act requires that the courts of this country exercise their jurisdiction under the Act "in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England."
It is interesting to note, even at this early stage, that the Constitution Uganda enjoins the courts to exercise judicial power "in the name of' people and in conformity with the law and with the values, nor and aspirations of the people." (of Uganda of course)!
At the beginning of the trial the following issues were framed and agreed upon:-
Whether the impugned sections of the Divorce Act are contravention of the Constitution as alleged.
Whether the petitioners are entitled to the reliefs prayed
(4) THE EVIDENCE
As I indicated above, the petitioners, most of who are lawyers by profession, swore affidavits in support of this petition. The gist of the evidence contained therein is:-
That the Divorce Act discriminated against women in violation of express provisions of the Constitution.
That the Act perpetuates inequality between sexes.
That the Act is against the dignity, welfare and interest of women and undermines their status.
One male deponent whose marriage broke down in 1996 testified that he had had to live in misery because he cannot divorce his wife cue to
his inability to prove adultery against her and to name a co- respondent as required by the Divorce Act. (e) Another male deponent testified that his marriage broke down shortly after the wedding with his wife due to irreconcilable differences. He is unable to divorce and feels discriminated against in as far the Divorce Act imposes on him different grounds of divorce from those required of his wife. He also finds it cruel, inhuman and degrading to be required to prove adultery of his wife because he is subjected to torture in the process of trying to obtain the necessary evidence.
Though the Ag. Solicitor General Mr. L. Tiberuha swore an affidavit disputing the above averments, both counsel for the parties stated at
the trial that they had no disputes arising from the affidavits and that the petition should be resolved on the basis of legal arguments on
purely legal interpretation of the Constitution and the Divorce Act.
I will now set out the provisions of the constitution, which, it is contended, are being contravened by the various provisions of the Divorce Act.
Article 21 provides as follows:-
"21(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
(2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability. (3) For the purposes of this article, "discriminate" means to to give different treatment to different persons attributable only